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People v. Sepulveda8/3/2005
THE COURT
FACTS
Joe Luis Sepulveda (appellant) pled no contest to three counts of felony driving under the influence of alcohol (DUI) (Veh. Code, § 23152, subd. (b)), and two counts of driving when the privilege was suspended for prior DUI (Veh. Code, § 14601.2, subd. (a)). Appellant further admitted all prior convictions and admitted to driving with a blood alcohol level of .25 percent. During the change of plea proceedings, the court advised appellant of the consequences of his plea, including that the maximum penalty for the DUI and driving with a suspended driver's license was five years and eight months in prison, restitution and a probable revocation of his license. Before accepting the plea, the court specifically warned appellant that "there's probably sufficient aggravating factors where the judge could give you the full five years and eight months." "So probably you should expect the worst...." Appellant then pled "straight up" to all charges and entered a plea of "no contest." Additionally, appellant stipulated that his blood alcohol level was .25 percent as charged in Counts one and two and admitted his prior felony convictions.
At sentencing, the court found in mitigation that appellant pled at an early stage of the proceedings. In aggravation, the court found that appellant's stipulated blood alcohol level and prior criminal history showed that appellant was a threat to the safety of others. The court found that the factors in aggravation outweighed the factors in mitigation and sentenced appellant to the three-year upper term for Counts one and two, with Count two stayed. The admitted prison priors added two one-year enhancements for a total of five years. Count four was to run consecutively for a total of eight months (the required one- third of the middle term of two years). Appellant's sentence totaled five years and eight months.
This appeal challenges appellant's upper term sentence in light of Blakely v. Washington (2004) 542 U.S. ---, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely).
DISCUSSION
Relying on United States v. Booker (2005) 543 U.S. __ [125 S.Ct. 738], Blakely v. Washington, supra, 542 U.S. __ [124 S.Ct. 2531], and Apprendi v. New Jersey (2000) 530 U.S. 466, appellant contends the trial court violated his Sixth Amendment right to trial by jury and Fifth and Fourteenth Amendment right to due process of law by imposing upper terms based on factors not admitted by appellant or found to be true by the jury beyond a reasonable doubt. The California Supreme Court recently undertook an extensive analysis of these cases and concluded that the imposition of an upper term sentence, as provided under California law, is constitutional. (People v. Black (June 20, 2005, S126182) __ Cal.4th __, __, __ [pp. 1, 17, 27].) Accordingly, appellant's contention fails.
DISPOSITION
The judgment is affirmed.
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